Is Antonin Scalia’s originalism—indeed, constitutional self-government itself—passé? The eternal temptation to read one’s own values into the Constitution beguiles even religious conservatives espousing natural law.
The U.S. Constitution is the “supreme law of the land,” whose ultimate interpretation is entrusted, by longstanding custom if not by explicit textual direction, to the U.S. Supreme Court. Accordingly, it is vitally important to divine the true meaning of our fundamental law. When a state or federal law is alleged to conflict with the Constitution, how are courts supposed to resolve the conflict? How can citizens satisfy themselves that the black-robed oracles who interpret the Constitution are doing so accurately?
These questions are more pressing than ever, as contested issues of public policy increasingly end up in court to be decided as cases involving constitutional law. Since the heyday of the Warren Court in the 1960s, federal judges have asserted primacy over fundamental aspects of our lives, ruling on issues such as abortion, marriage, immigration, voting, education, pornography and obscenity, law enforcement, capital punishment, welfare benefits, racial preferences, religious expression, and the power of administrative agencies.
Legal scholar Lino Graglia, who taught for more than 50 years at the University of Texas School of Law, argues that a clique...